The Obama administration, in a sweeping defense of marriage rights for same-sex couples, argued on Friday that the denial by states of those rights over the last decade is proof that discrimination against gays and lesbians still continues.  The brief cited California’s flat ban on such marriages — Proposition 8 — as an example of the ongoing problem of bias against homosexuals.

In the context of the brief, the brief references to California’s Proposition 8 were subtle and fleeting, but they immediately raised the question of whether the administration was getting into position to come out directly, next week, against that voter-approved ballot measure.  It has not yet taken a position on the proposition’s constitutionality, and that is not an issue in the case in which the new document was filed — United States v.Windsor (12-307).

In a separate administration brief, also filed Friday in the Windsor case, the government’s lawyers argued that their appeal challenging the constitutionality of the federal Defense of Marriage Act is properly before the Court, and thus can be decided in that case.  That 1996 law’s Section 3 barred legally married same-sex couples from any federal benefits or programs based on marriage.

The brief continued the efforts by the administration, begun two years ago tomorrow, to persuade the courts to adopt a rigorous test when they judged laws that discriminated against gays and lesbians.  Instead of the much more tolerant “rational basis” test, the government has been pressing for what is called “heightened scrutiny.”  And Friday’s brief defended that approach energetically.

This is the first time the federal government has proposed that constitutional test in a gay rights case before the Supreme Court.  The Court itself has never specified just what constitutional standard it will apply in such cases, but it may have to settle that this Term.

The DOMA benefit ban for married same-sex couples, the brief argued, cannot withstand the tougher standard.  “This Court,” the brief said, “has understandably reserved the application of heightened scrutiny to a small number of classifications.”  While the Court has not yet spelled out its own view of what the test is, the brief said, “under the factors articulated by this Court, such classifications warrant heightened scrutiny.”

Some observers — including one judge who was on the court panel that ruled in the case the administration has taken to the Court — have argued that, if the tougher standard is applied, not one of the state denials of marriage to same-sex couples can survive constitutionally.  Such denials have come in thirty-nine states.

California’s Proposition 8 was one of those denials.   After the state Supreme Court had ruled that same-sex couples have a right to wed under the state constitution, in November 2008 the state’s voters went to the polls , where a slim majority voted to take away that right.  The state constitutional amendment said that the state would recognize only marriages of one man and one woman.

The constitutionality of Proposition 8 is pending before the Court in a separate case now under review — Hollingsworth v. Perry (12-144), and there is no direct overlap of that case with the DOMA dispute in the Windsor case.  But the filing of written legal arguments in the cases is proceeding on nearly parallel tracks, and the Court will hold hearings on the cases, back to back, on March 26 and 27.

If the administration is going to move into the Proposition 8 case, on the side of the two same-sex couples who have been challenging the measure, it must file a brief next Thursday.  The lawyers representing those two couples said this week that they have no idea whether they will have the administration on their side, although they are hoping for that.

But those attorneys, and their clients — and, indeed, advocates of same-sex marriage across the country — could well have seen at least some positive signs in the administration brief filed on the merits of DOMA in the Windsor case, even though Proposition 8 is not in play directly in that case.

Here, in summary, is how U.S. Solicitor General Donald B. Verrilli, Jr., the administration’s top courtroom advocate, went about bringing Proposition 8 and the other thirty-eight states’ denials into the Windsor case:

First, among the factors that Verrilli cited in arguing for the standard were those that have led the Court, in cases involving other forms of discrimination, to adopt a “heightened scrutiny” standard: that is, whether the group seeking that kind of protection has been a target of discrimination and has been lacking in political power so that it has less or little chance of gaining protection.

Second, in finding that gays and lesbians have been, in the past and currently, the targets of discrimination and have been lacking in political power, Verrilli cited “the recent history of marriage initiatives” — the history of thirty-nine states, including California with Proposition 8, adopting bans on same-sex marriage, either by state laws or constitutional amendments.

Third, Verrilli pointed out that, at the time DOMA was passed in 1996, only three states had laws allowing only opposite-sex couples to marry.  Now, thirty-nine states do, with thirty of those coming from voter-approved state constitutional amendments.

Fourth, only six states have given same-sex couples marriage rights “through the political process,” while three more have done so through state court rulings.  “That is not a convincing record of political power rendering protection unnecessary,” Verrilli wrote.  And, at that point, the brief dropped in a footnote, which said that, “[b]y way of example, in May 2008, the California Supreme Court held that the state was constitutionally required to recognize same-sex marriages….In November 2008, California’s voters passed Proposition 8, which amended the state constitution to restrict marriage to opposite-sex couples.”

Thus, while this sequence was used by Verrilli explicitly to bolster his argument for applying “heightened scrutiny” to DOMA, it could not have been inadvertent that the experience with Proposition 8 itself demonstrated what the federal government deems ongoing bias.

The brief suggested that, if the Court will not embrace “heightened scrutiny,” it should not apply the easiest test — “rational basis” — but rather should go for something between “rational basis” and “heightened scrutiny.”  DOMA’s benefit bans, the brief said, cannot survive that, either.

In arguing that the Court has jurisdiction to hear the government’s appeal in Windsor, Verrilli’s brief was answering a jurisdictional question raised directly by the Court when it granted the case.  He argued that, because the lower court decisions striking down DOMA in that case require the government to give an estate tax refund to the woman involved, Edith Windsor, the government still has a stake in the case even if it agreed with Ms. Windsor that the denial of an estate tax benefit was invalid under DOMA.

The government’s brief on the Court’s jurisdiction argued that the Republican leaders of the House of Representatives, who have taken up the defense of DOMA after the Administration abandoned it, do not have a legal right under Article III to take the place of the federal government in pursuing a final Court ruling on DOMA’s validity.

But, the brief said, the Court need not reach the issue of the GOP leaders’ “standing” because the federal government is properly before the Court in the Windsor case.  The government has said it does not object to the GOP leaders being able to take part in the government case.

 

Posted in U.S. v. Windsor, Featured, Merits Cases, Same-Sex Marriage

Recommended Citation: Lyle Denniston, DOMA: U.S. takes tough line on marriage denial, SCOTUSblog (Feb. 22, 2013, 8:28 PM), http://www.scotusblog.com/2013/02/doma-u-s-takes-tough-line-on-marriage-denial/